Guns in Court

The 1939 Supreme Court case of United States v. Miller is the best thing that the gun-prohibition groups have left, legally
speaking.

Mr.
Kopel is
research director of
Independence
Institute. Along with Andrew McClurg and Brannon Denning, Mr.
Kopel is co-author of the law-school textbook Gun Control and Gun
Rights, to be published by New York University Press in the spring
of 2002.

National Review Online.
May 30, 2001 11:30 a.m. More by Kopel on the Miller case.

Astute media-watchers have been
noticing that the Washington Post, despite its liberal
reputation, has been
getting ever more objective and careful in its news reporting.
Meanwhile, the New York Times, despite its reputation for
objectivity and accuracy, has been getting ever sloppier, and trending
further and further left in its reporting — as documented by
Smartertimes.com
An excellent illustration of the Post's rise and the Times'
degeneration can be seen in their contrasting treatment of the recent
letter from Attorney General John Ashcroft to the NRA announcing
his belief that the Second Amendment guarantees an individual right to
arms.

Both papers provided background to the Ashcroft letter by discussing
United States v. Miller, the last Supreme Court case
that analyzed the Second Amendment at length. The Washington Post
described the case with perfect accuracy: "In the 1939 U.S. v.
Miller decision, the U.S. Supreme Court ruled that there was no
constitutional right to own a sawed-off shotgun because it had no
'reasonable relationship to the preservation or efficiency of a
well-regulated militia.'"

The Times, on the other hand, misrepresented the case, applying
the spin which gun prohibition groups so often use about Miller:
"Mr. Ashcroft's letter, sent last Thursday in response to an inquiry
from the N.R.A., rejects another interpretation — applied by the
Supreme Court in its last major ruling on the amendment, in 1939 —
which holds that the Constitution guarantees only a collective right
to guns through state and federal militias, not an individual's
right."

Note that the Post quoted directly from the Miller case,
whereas the Times did not--and indeed could not, because the Miller
Court never says what the Times claims.

Miller nowhere explicitly says that the Second Amendment does
or does not guarantee an individual right or a collective right.

It
is logically impossible, by the way, for a "collective right" to exist
unless the individuals who belong to the collectivity possess an
individual right. Otherwise, a "collective right" would be like
"collective property" in a Communist country — meaning no right at
all, but instead the government's destruction of the right.

Miller grew out of a 1938 prosecution of two bootleggers, Jack
Miller and Frank Layton, for violating the
National Firearms Act by possessing a sawed-off shotgun without
having paid the required federal tax. The federal district court
dismissed the indictment on the grounds that the National Firearms
Act violated the Second Amendment [26 F. Supp. 1002, 1003 (W.D. Ark,
1939).]

Freed by the district court's ruling, Miller and Layton promptly
absconded, and thus only the government's side was heard when the case
was argued before the Supreme Court. Since a federal statute had been
found unconstitutional, the federal government was allowed to take the
case directly to the Supreme Court, under the law of the time.

If
the Second Amendment only protected the National Guard, then the
Supreme Court would have thrown Jack Miller's case out of court for
lack of standing, since Miller, an Oklahoma bootlegger, was plainly
not a member of the National Guard. Yet the Supreme Court has never
ruled that individuals cannot raise Second Amendment claims. Instead,
the Supreme Court sent the case back to the trial court for
fact-finding about whether Miller's particular firearm (a sawed-off
shotgun) was a militia-type weapon. Miller and Layton being long-gone,
the district court never heard the case again.

The Supreme Court's decision was consistent with the main line of
state court
precedent from the nineteenth century, which said that the right
to arms in state constitutions and in the Second Amendment applied to
everyone, but the right included only arms suitable for militia-type
use (e.g., a rifle) but not arms suitable only for brawling (e.g.,
brass knuckles). For example, in 1891 the West Virginia Supreme Court
construed the Second Amendment to protect an individual's right to
own:

"the weapons of warfare to be used by the militia, such as swords,
guns, rifles, and muskets-arms to be used in defending the State and
civil liberty — and not to pistols, bowie-knives, brass knuckles,
billies, and such other weapons as are usually employed in brawls,
street-fights, duels, and affrays, and are only habitually carried
by bullies, blackguards, and desperadoes, to the terror of the
community and the injury of the State."
State v. Workman, 35 W. Va. 367, 372 (1891).

The minority of state cases extended protection to any weapon that was
suitable for personal defense. The Miller Supreme Court
explained that the "the militia comprised all males physically capable
of acting in concert for the common defense…ordinarily when called for
service these men were expected to appear bearing arms supplied by
themselves and of the kind in common use at the time."

As
the Miller case illustrates, individuals may raise Second
Amendment claims even when they are not in the National Guard, and are
not participating in any type of militia activity. But the only
firearms that the Second Amendment protects are those that may be
suitable for militia purposes.

The confusion about Miller arises from the paragraph in which
the Supreme Court said that Mr. Miller's sawed-off shotgun was not, as
far as the Court knew, a militia-type arm:

"In the absence of any evidence tending to show that possession or
use of a 'shotgun having a barrel of less than eighteen inches in
length' at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot
say that the Second Amendment guarantees the right to keep and bear
such an instrument. Certainly it is not within judicial notice that
this weapon is any part of the ordinary military equipment or that
its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."

The case cited by the Supreme Court,
Aymette, interpreted the Tennessee Constitution's right to
arms to protect an individual right to own firearms, but only those
firearms suitable for militia use. In dicta, Aymette stated that the Second Amendment has the same meaning.

The Miller opinion's penultimate paragraph stated, "In the
margin some of the more important opinions and comments by writers are
cited." In the attached footnote, the opinion cited two prior U.S.
Supreme Court opinions and six state court opinions, all of which
treated the Second Amendment or its state analogue as an individual
right, even as the opinions upheld particular gun controls:
Presser v. Illinois, 116 U.S. 252 (1886) (Second
Amendment not violated by ban on armed parades);
Robertson v. Baldwin, 165 U.S. 275 (1897) (Second
Amendment not violated by ban on carrying concealed weapons, because
all constitutional rights contain implicit exceptions);
Fife v. State, 31 Ark. 455 (Second Amendment does
not apply to the states; state right to arms not violated by ban on
brass knuckles);
People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931)
(Michigan state constitution right to arms applies to all citizens,
not just militiamen; right is not violated by ban on carrying
blackjacks); State(discussed above); Duke, 42 Tex. 455 (1874) (Second Amendment does
not directly apply to the states; Texas constitution protects "arms as
are commonly kept, according to the customs of the people, and are
appropriate for open and manly use in self-defense, as well as such as
are proper for the defense of the State."); Workman(see above).

The Miller footnote likewise cited treatises by Justice Joseph
Story and Thomas Cooley explicating the Second Amendment as an
individual right. Justice Story, in
section 1891 of his treatise on constitutional law, explained,
"The right of the citizens to keep and bear arms has justly been
considered as the palladium of the liberties of a republic; since it
offers a strong moral check against the usurpation and arbitrary power
of rulers; and will generally, even if these are successful in the
first instance, enable the people to resist and triumph over them."

But the same Miller footnote also cited a Kansas Supreme Court
decision which was directly contrary; that case held that the right to
arms in Kansas belonged only to the state government, and in dicta made the same claim about the Second Amendment.
Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905).

So
while the weight of the Miller opinion and the sources it cites
are on the side of individual rights, the Court did cite one lower
court case that rejected individual rights. And most importantly, the
Court never explicitly endorsed the individual rights view or the
"collective rights" view.

Thus, my friend Andrew McClurg, a University of Arkansas Law Professor
who opposes the individual-rights position, provides an accurate
summary when he writes:

"The truth is, Miller offered a little something for everyone. It is an ambiguous decision
that failed to unequivocally adopt either a collective right or an
individual right interpretation of the Second Amendment…

"[W]hen all is said and done, the only certainty about Miller is
that it failed to give either side a clear-cut victory. Most modern scholars
recognize this fact. For example, Professor Eugene Volokh describes
Miller as 'deliciously and usefully ambiguous' in an article about using
the Second Amendment as a teaching tool in constitutional law. That
is probably the most accurate statement that can be made about the
case." [McClurg,
"Lotts' More Guns and Other Fallacies Infecting the Gun Control
Debate," 11 Journal of Firearms & Public Policy 139 (1999).]

There is one other notable feature about Miller:
It is the best thing that the gun-prohibition groups have left,
legally speaking. Because Miller doesn't explicitly affirm the Standard Model of the Second Amendment
(the individual-rights view) lower courts that are determined to
uphold repressive gun laws can cling to it. As Southern Illinois
University law professor Brannon Denning details in
Can the Simple Cite be Trusted?, some lower courts have cited
Miller for propositions which cannot reasonably be said to flow from
Miller, in order to uphold anti-gun laws.

The tide of scholarly legal opinion today is overwhelmingly on the
side of the Standard Model of the Second Amendment. Attorney General
Ashcroft's recent letter is consistent with modern scholarship, and it
is not inconsistent with Miller— despite what the New York Times
wishes to believe.

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